Baker v. Phillips

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE.

         BACKGROUND

         Plaintiff William Ray Baker, appearing pro se, filed this action against defendants. (Docket 1). Plaintiff alleges these defendants all have an affiliation with Rapid City Regional Hospital. Id. According to plaintiff, the grounds for his lawsuit include violations of: the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”); concerted activity protections under the National Labor Relations Act (“NLRA”); and the Occupational Safety and Health Act of 1970 (“OSHA”). Id.

         In support of his claims, plaintiff asserts the following facts. Defendants Brent Phillips and Lia Green manage a health care organization. Id. at p. 4. On Tuesday, November 1, 2016, Alyson Wiedrich sent an e-mail containing the names Tresha Moreland, Paula McInerney-Hall, Richard Rice, John Pierce, Tristina Weekley, Charlene Williams, Janel Brown, Robert Wilson and Stephanie Rhodes. Id. The e-mail followed an event where Nicholas Horning and Ms. Weekley asked questions of Margaret Baker. Id. The defendants obstructed an OSHA inspection. Id. Plaintiff visited the OSHA Area District Office in Bismarck, North Dakota. Id. The complaint also includes legal conclusions regarding conspiracies to intentionally inflict emotional distress on plaintiff. Id.

         Defendants filed a motion to dismiss the complaint. (Docket 16). The court grants their motion.

         DISCUSSION

         Defendants argue dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure is warranted because the complaint fails to state a claim upon which the court can grant relief. (Docket 17). Defendants assert neither HIPAA nor OSHA provide plaintiff with a private right of action. Id. at pp. 6-7. As to plaintiff's intentional infliction of emotional distress claims, defendants Phillips and Green argue plaintiff fails to meet Rule 12(b)(6). Id. at pp. 9-10. Defendants contend dismissal under Rule 12(b)(1) is proper for plaintiff's NLRA claim because the National Labor Relations Board (“NLRB”) would have exclusive jurisdiction over the claim. Id. at pp. 7-8.

         Plaintiff submitted three filings in response to defendants' motion, and they contain numerous factual assertions beyond those alleged in his complaint. (Dockets 20, 21 & 23). The additional facts in plaintiff's responses are not properly before the court and the court will not consider them in ruling on defendants' motion. See Fischer v. Minneapolis Pub. Sch., 792 F.3d 985, 990 n.4 (8th Cir. 2015) (“But Fischer failed to include these claims in his complaint, failed to file an amended complaint by the deadline, and did not later petition to court to amend his complaint. Accordingly, these claims were not properly before the district court.”) (internal citations omitted); Morgan Distrib. Co., Inc. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989) (“[I]t is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss.”); Midland Farms, LLC v. U.S. Dep't of Agric., 35 F.Supp.3d 1056, 1066 (D.S.D. 2014) (“Midland may not amend its Complaint through an argument raised in a brief in opposition to a motion to dismiss.”) (collecting cases).

         Under Rule 12(b)(6), a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Two “working principles” underlie Rule 12(b)(6) analysis. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, courts are not required to accept as true legal conclusions “couched as . . . factual allegation[s]” in the complaint. See id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). The court does, however, “take the plaintiff's factual allegations as true.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). Second, the plausibility standard is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 678 (citation omitted). The complaint is analyzed “as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible.” Braden, 588 F.3d at 594.

         “In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (internal citation omitted). “In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion [to dismiss] is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Id. (internal citation omitted). “Jurisdictional issues, whether they involve questions of law or of fact, are for the court to decide.” Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990).

         In applying these principles, the court must construe plaintiff's pro se complaint liberally. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). This means “that if the essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework.” Jackson v. Nixon, 747 F.3d 537, 544 (8th Cir. 2014) (internal quotation marks omitted). The complaint “still must allege sufficient facts to support the claims advanced.” Stone, 364 F.3d at 914.

         I. HIPAA

         Plaintiff's HIPAA claim fails “because HIPAA does not create a private right of action.” Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010) (citing Adams v. Eureka Fire Prot. Dist., 352 Fed.Appx. 137, 139 (8th Cir. 2009)); see Lafleur v. Jetzer, No. 4:14-CV-04175, 2015 WL 6157745, at *6 (D.S.D. Oct. 20, 2015) (citing this holding in Dodd). The court grants defendants' motion to dismiss plaintiff's HIPAA claim under Rule 12(b)(6).

         II. ...